Missouri Hazardous Waste SeminarNRD in Missouri
Overview of the NRD Process
November 4, 2014
NRD Regulatory Basis
• Clean Water Act Section 311(F)(4) & (5)
Cleanup costs incurred in restoration or replacement of natural resources
• CERCLA Section 107
Recover damages necessary to restore injured natural resources.
• Oil Pollution Act of 1990
Recovery of natural resource damages caused by oil spills
Trustees
• Department of the Interior
U.S. Fish and Wildlife Service
National Park Service
• Department of Commerce
National Oceanic and Atmospheric Administration
• Department of Agriculture
U.S. Forest Service
• Indian Tribes
• Department of Energy
• Department of Defense
• States
Definition of Natural ResourcesCERCLA Section 101(16)
• “land, fish , wildlife, biota, air, water, ground
water, drinking water supplies, and other such
resources belonging to, managed by, held in trust
by, appertaining to, or otherwise controlled by the
United States … any State or local government,
any foreign government, any Indian Tribe…..”
Definitions
• Injury
Measurable, adverse change in chemical or physical quality, or viability of a natural resource
• Services
Physical and biological functions performed by natural resources (habitat, recreation, aesthetics, drinking water)
• Damages
Compensation for loss or reduction of services
“Causal” Connection• Section 107(a)(4)(c) of CERCLA provides that
responsible parties are liable for “[D]amages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss resulting from such a release.”
• To establish causal link, Trustees must show:Injuries or losses to natural resourcesNexus with lost servicesDirect correlation between injuries and release
caused by responsible party
Causal Connection
Baseline
• Fundamental premise in the NRD process
• The condition of the resource or resources that would have existed at the assessment area had the release not occurred
• Changes from baseline are to be measured in surface water, groundwater, air and geologic resources in the area in which contamination from the discharge or release is found (43 CFR § 11.71(h) – (l)
• Changes in biologic resources to be determined by changes at the population, ecosystem, or habitat level (43 CFR § 11.71(h) – (l)
Establishment of Baselines
• PRP liability does not extend to diminished ecosystem services and/or other "injuries" not caused by the hazardous substance release.
• A given PRP is not responsible for injuries from releases that occurred wholly before the PRP had an ownership, operational or other interest.
• Trustees must consider baseline in determination of injuries in terrestrial and aquatic ecosystems.
Establishment of BaselineDefinitions
Injury Definitions
• CERCLA Section 107(a)(4)(C)
• “Damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss resulting from such a release.”
• Nexus between a release and the injury must be proven
• Limited to injuries that occurred after the passage of CERCLA (1981)
Injury Determination
• Either chemical or physical quality of resource
• NRD regulations allow proof of injury by either:
Empirical evidence of an adverse change in the resource
Exceedance of regulatory standard
Service Determination• Physical and biological functions performed by the resource
• Result of the quality of the resource.
• Habitat and supporting ecosystem, nutrient cycling, geochemical exchange processes, primary/secondary production, transport of energy (food)
• Baseline services must be determined as part of the injury quantification stage (43 CRF 11.72[a])
Services
Services (Continued)
• Calculation of restoration is based on
Determination of baseline services of injured resources;
Determination of the extent of injuries and the reduction of services resulting from the injuries;
Determination of recoverability of the injured resources (43 CFR 11.70[c])
• Baseline services must be determined as part of the injury quantification stage (43 CRF 11.72[a])
NRDA Concept
• Natural resources managed by trustees
• Natural resource provide a service to the public
• Injury to resources from chronic release or spill results in a loss of service
• Responsible party is obligated to pay for the lost services, for restoration to the point services are restored, and for the trustees costs
NRDA Concept (Continued)
• Responsible party pays for restoration of services to some predetermined baseline or reference condition
• Trustees required to use recovered damages to restore, replace, or acquire the equivalent of the affected resource
Relationship to Remedial Action
• A natural resource damage action under CERCLA usually seeks to recover for residual harm that will exist after any remedial action implemented by EPA
• NRD actions can and have been brought under CERCLA in situations not involving a remedial action
Concept Overview
PristinePristine
BaselineBaseline
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f R
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TimeTime
Natural RecoveryNatural Recovery
RemediationRemediation
ChemicalChemicalReleaseRelease
Restoration
Value of the NRDA =Value of lost services
+ Compensatory
NRDA Process
Pre-assessment (Is there a problem?)
Injury determination (What are the injuries?)
Injury quantification (What are the lost services?)
Damage determination (What are the costs?)
Restoration (Plan/restore the injured resources)
Two Types of Injury Determinations
• Type A: Simplified procedures. Computer model.
• Type B: More rigorous scientific evaluations conducted in the field pursuant to a series of USFWS guidance documents
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